DennisBeaverNovember 15, 2008 (Original publish date) • By Dennis Beaver

“Mr. Beaver, would you please explain when I should expect to be paid — and who owes me — for my work as an expert witness for a law firm,” began Joel’s e-mail. “I am an ASE Certified auto mechanic and also have a Master Certification from Mercedes Benz. I run my own auto repair shop in a town not far from Fresno, specializing in German cars. Some months ago, I was contacted by a law firm on the coast and asked to help them with a case they were handling for one of their clients.”

“The client purchased a 10 year old Mercedes which needed expensive repairs. Instead of taking it to an ASE Certified mechanic or a Mercedes dealership, he brought it to a general mechanic whose reputation was not good. The client was unaware this mechanic lacked the skill or equipment necessary to do the work correctly,” Joel continued.

“The vehicle wound up in worse shape after leaving the shop and the owner was horribly overcharged. After I reviewed work orders and examined the vehicle, I wrote a detailed report for the lawyer which was later used as a basis for the suit. Later, I testified at two depositions.”

When I was hired, I sent the law firm a letter telling them that I bill on an hourly basis the same as if I were working on a car, roughly $85 an hour. They agreed in writing to my fee. It has been months now, and even though I sent them several bills, they have not paid me; saying that I will be paid when and if they are either paid by their client, or win the case and have the money. This seems wrong. What are my rights?”

A common situation

This is an extremely common situation, and should never happen. Yet, I have heard from a number of readers as well as my own clients in the same spot, and not only expert witnesses. What is absolutely impossible to understand is how some attorneys who have the money, know they owe the bill, but who put off for months paying the people who make their cases possible.

That’s why I always advise obtaining payment of a large part of your expected bill in advance, just like lawyers do when asking for a retainer. If a lawyer can expect to be paid up front for legal services, so can the people who are hired to work on the case.

In these situations, “I’ll pay you when I get paid or if we win the case,” isn’t only wrong, it is a breach of contract, a violation of requirements of the Code of Civil Procedure as well as the ethical standards which all lawyers must respect.

Need for a signed agreement

Unless the client signs a written agreement to be directly responsible for the bill, then the lawyer is responsible. This is true even if the client changes lawyers, or if the lawyer is never paid by his client for the expert’s work.

This issue — a signed agreement to pay the debt of someone else — touches everyday life.

Ever been asked to co-sign for a car loan? If you agree — which is generally a horrible mistake — a co-signer contract will be required. In general, if there is no signed agreement to be responsible for someone else’s debt, then you’re off the hook.

Joel did not know that in California, if an expert is asked to testify at a deposition, payment must be made in advance of giving testimony. I’ll bet you the lawyer knew that.

But the lawyers were already paid!

I am amazed at the nerve of some attorneys, as the following case illustrates:

Over the past several years, Barstow College was embroiled in a real property lawsuit. They were represented by a successful, very large law firm — with six offices around California — Atkinson, Andelson, Loya, Ruud and Romo.

The attorneys handling the case hired a Southern California Real Estate Appraiser, Mike Launer. He is a highly regarded, skilled, well-trained appraiser who did a great deal of work on the case.

He submitted his reports, testified, sent in bills, and waited for payment. And waited and waited, resubmitting bills. Months went by. Finally one of the law firm’s partners stated, “his invoices have been included with our bill to the client and when we receive payment, we will pay him. He agreed to that.”

Only Mike never did agree to that, nothing remotely close appeared in writing!

To make matters more interesting, Mike and I phoned Barstow College and spoke with a very concerned and embarrassed Vice President of Administrative Services, Curt Mitchell. “But we already paid that bill, months ago! Mike did good work for us. He should certainly have been paid! Those guys will pay him within two days, I’ll see to it.”

The next day, a Fed-Ex envelope — from the law firm — arrived at my office with Mike’s check. Score one for justice.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.